Mobile patent wars: Any end in sight?

Just by coincidence, on the same day that armies of lawyers for Apple and Samsung were squaring off in court – once again – over a high-stakes patent dispute, I happened to have a brief chat on Thursday with San Francisco attorney Robert Van Nest.

Van Nest is a high-powered commercial litigator who knows a lot about smartphone patents and the current Apple/Android wars. His firm, Keker & Van Nest, represented the Android smartphone-maker HTC in its recent patent battles with Apple. He also defended Android in another legal fight this year, when he represented Google against Oracle’s claims that Android infringed on Oracle’s Java programming system.

The latter case ended up mostly a win for Google, although Oracle is pursuing appeals. HTC, meanwhile, recently settled its dispute with Apple by negotiating a broad licensing agreement over mobile technology, a few months after Apple won its $1 billion jury verdict against Samsung.

I asked Van Nest, who wasn’t involved in the Samsung case, if he thought the HTC settlement has any broader significance for the mobile patent wars. Not surprisingly, he said he was bound by confidentiality agreements that limited what he could say. But he seemed to acknowledge a possible inflection point.

“One significant thing is that it does show that Apple is willing to license the smartphone technology around the iPhone,” Van Nest said. Citing the famous vow that Steve Jobs made to his biographer, Van Nest added, “according to what Mr. Jobs had said, his goal was to destroy Android and change it so it couldn’t effectively compete with the iPhone. This does signal a change in approach.

“HTC now has a license around smartphone technology and it’s going to remain a competitor in the market,” he continued. “That’s significant.”

I also asked Van Nest about the challenges of arguing arcane tech disputes before a jury that may have little tech training. During the Oracle/Google trial, he brought a large filing cabinet into the courtroom and used it as a prop to demonstrate the structure of certain computer programming tools. Some critics disputed the metaphor, but it appeared to be effective.

As an attorney preparing for trial, Van Nest said, “you’re always looking for something like the file cabinet. Unless you can break down the concepts so they can be easily understood, you’ll be at a disadvantage with the jury.”

Van Nest may be looking for more metaphors in coming months. He’s also representing HTC in a patent suit brought by Kodak, in a case where the latter is suing both HTC and Apple over digital camera technology. And he’s gearing up to defend some of Google’s sophisticated advertising sales software against a patent lawsuit by a British company.

Any End In Sight? To date, software freedom activists (such as Richard Stallman) offered very little as far as open source for mobile applications. Speaking of open source and Keker & Van Nest, activist Aaron Swartz, who faces up to 35 years in prison, recently hired Keker & Van Nest to represent him, according to court documents filed with the United States District Court of Massachusetts.

Attorney Matthias Kammber of Keker & Van Nest informed the court that Swartz’s local attorney, Martin Weinberg, “will be withdrawing as counsel” and will be replaced by Cody Harris, Daniel Purcell, and top gun Elliot Peters, all of Keker & Van Nest.

Swartz, 25, is a fellow at Harvard University’s Safra Centre for Ethics and is charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million, according to a press release issued by United States Attorney Carmen Ortiz.

In various declarations submitted to the court, Assistant U.S. Attorneys Stephen Heymann and Scott Garland alleged that Swartz — who is not a student, faculty member, or employee of MIT — gained physical access to MIT’s computer network through a laptop computer he installed in a restricted wiring closet in the basement of a research building, and that he intentionally masked his face with a bicycle helmet to avoid identification on a video camera as he entered the closet to remove the laptop; they also alleged that Swartz used fictitious names and manipulated computer identification information to get and maintain access to MIT’s computer network, and that he took repeated and affirmative steps to evade efforts by both MIT and JSTOR to lock him out of their computer networks.

In somewhat related news, Swartz and Larry Lessig, also of Harvard University’s Safra Centre for Ethics, are presently also being scrutinized as part of an ongoing non-criminal inquiry conducted by the author stemming from myriad suspicious financial transactions in connection with circumstances surrounding Chris Young (presently an attorney with Keker & Van Nest), defunct non-profit entity CaliforniaALL, Mitchell and Freada Kapor (a director of CaliforniaALL) of The Kapor Center, Bettina Neuefeind (wife of Larry Lessig), and two non-profit entities bearing the same name of “Democracy Fund,Inc.” — EIN 27-2439840 and EIN 26-3088283 — with connections to Lessig and Swartz.

Although other potential explanations certainly exist, as matters presently stand, it appears that in 2007-2008, Democratic party agents may have participated in what appears to be unexplained financial machinations relating to the California Bar Foundation and newly created non-profit entity CaliforniaALL with respect to funds originating from major utility companies and the California Bar Foundation, in order to promote the election of Barack Obama in general, and on behalf of those seeking to promote green energy in particular.

MUNGER TOLLES & OLSON attorneys Jeffrey Bleich (president of the State Bar of California, director of the California Bar Foundation, founding member and Chair of OBAMA FOR AMERICA’s National Finance Committee who pushed for the creation of CaliforniaALL, as well as for the appointment of director Freada Klein Kapor), Brad Phillips (2007- 2008 Director of the California Bar Foundation which served as a “financial sponsor” to CaliforniaALL on behalf of Verizon Wireless and Southern California Edison, both clients of Munger Tolles & Olson) (examination of the IRS 990 Verizon Wireless submitted to the IRS shows absolutely no payments to either CaliforniaALL or the California Bar Foundation);

WILSON SONSINI attorneys Mark Parnes (2007-2008 director and Secretary of the California Bar Foundation), John Roos (former CEO of Wilson Sonsini in Palo Alto; a personal friend of both President Obama and Jeffrey Bleich, currently serving as the U.S. Ambassador to Japan; similar to Ambassador Bleich, Ambassador Roos acted as a “bundler” and raised over $500,000 for Barack Obama’s 2008 presidential campaign);

KAMALA HARRIS (co-chair, OBAMA FOR AMERICA ; member of CaliforniaALL); Harris is the sister of Maya Harris, who is married to Tony West, the chair of Barack Obama’s California Finance Committee who now serves as third in command within the United States Department of Justice below Eric Holder and Lanny Breuer;

CaliforniaALL Director OPHELIA BASGAL of the Department of Housing and Urban Development (“HUD”): In around 2007-2008, Ms. Basgal was Vice President of Civic Partnership and Community Initiatives at PG&E, where she managed the company’s $18 million charitable contribution program, and oversaw its community engagement programs and partnerships with community-based organizations. Separately, around that time she also served as treasurer of the “California Supreme Court Historical Society.” In that role, she presumably had contact with many judges, including those who were handling matters dealing with PG&E, such as Justice (Ret.) Joseph Grodin who acted as the mediator in a case Attorney General Bill Lockyer advanced against PG&E, which Jerry Brown (cousin of Geoffrey Brown) later dismissed in his capacity as the new Attorney General for California;

LARRY LESSIG, FREADA KLEIN KAPOR, MITCHELL KAPOR, BETTINA NEUEFEIND, AARON SWARTZ: Around 2007-2008, Jeffrey Bleich caused the appointment of Freada Klein Kapor as Director of then newly-established CaliforniaALL. In a press release, the public was misled to believe that Freada Kapor is a diversity expert who operates an entity known as the Level Playing Field Institute. There was no mention that Freada Kapor is the owner of The Kapor Center, located at 543 Howard St., 5th. Floor, in San Francisco, which was used as telephone bank by volunteers of OBAMA FOR AMERICA, and received frequent visits from Bettina Neuefeind — wife of Larry Lessig — who served as the Office Manager of OBAMA FOR AMERICA in San Francisco.

Similarly, there was no mention, that tech-guru Mitchell Kapor — founder of Lotus 1-2-3 and the spouse of Freada Kapor, is part of OBAMA FOR AMERICA’s technical team.

Also located at The Kapor Center at 543 Howard St., 5th. Floor, in San Francisco were two newly created non-profit entities launched by Larry Lessig, Aaron Swartz, Joe Trippi, and Monica Walsh (a friend of Bettina) known as “Change Congress” and “Change V2 Foundation.”

Following the 2008 election of President Obama, Larry Lessig and his wife departed California. In 2010, Larry Lessig, Monica Walsh, and others launched a whole new Section 501(C) non-profit entity known as “Democracy Fund, Inc.”, EIN 27-2439840. On June 6, 2011, Larry Lessig, Monica Walsh, and others caused Change V2 Foundation (which was launched in 2008) to also operate under the name “Democracy Fund, Inc.” (EIN 26-3088283).

The case against Aaron Swartz is being prosecuted by Assistant U.S. Attorneys Stephen P. Heymann and Scott L. Garland of Ortiz’s Cybercrime Unit. UNITED STATES OF AMERICA v. AARON SWARTZ Criminal No. 11-10260-NMG . Contact the author yoloanrabbi@gamil.com